Court of Appeals of Texas, Houston (1st Dist.).

Tracy MORRIS, Appellant,

v.

EQUIFAX CREDIT INFORMATION SERVICES, INC., d/b/a Equifax Management Services, Appellee.

No. 01-01-00162-CV.

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Nov. 21, 2001.

Panel consists of COHEN, HEDGES, and TAFT, JJ.

OPINION

TIM TAFT, Justice.

*1 This is a retaliatory discharge case in which the trial court rendered summary judgment in favor of Equifax Credit Information Services, Inc. d/b/a Equifax Risk Management Services (Equifax), the defendant in the court below. Equifax moved for traditional summary judgment claiming that, although Tracy Morris, the appellant here and plaintiff below, filed her suit timely, she did not exercise due diligence in serving Equifax with process, and, as a result, limitations was not tolled until Morris actually accomplished service. In three issues on appeal, Morris claims (1) the due diligence standard is unconstitutional, (2) a different standard should apply, and (3) her five months delay in obtaining service was reasonable. We affirm.

Facts and Procedural History

Morris lost her job with Equifax after returning from workers’ compensation leave. It is undisputed Morris was terminated on December 10, 1997, that her claims were governed by the two-year statute of limitations for tort actions,¹ and that limitations expired on December 10, 1999. On the day limitations expired, Morris filed her original petition, in which she claimed Equifax terminated her in retaliation for filing a workers’ compensation claim. See Tex. Labor Code Ann. § 451.001(1) (Vernon 1996). Morris identified an address for service of process on Equifax in her petition, but did not request that process be issued.

The record reflects no further action in the trial court until April 13, 2000, when the trial court issued a notice to Morris’s counsel that the case would be dismissed for want of prosecution on June 5, 2000 unless, by May 29, 2000:(1) service was requested and an answer was on file; (2) a motion for default was filed; or (3) a motion to retain was filed and set on the docket.

On May 10, 2000, Morris’s counsel requested and paid for service of process for Morris’s first amended petition. Process was issued on May 16, 2000, the same day Morris filed her first amended petition, and served on Equifax on May 24, 2000. On May 26, 2000, Morris’s counsel filed a letter with the clerk of the trial court, to report that Equifax had been served. Return of service was filed with the trial court on June 6, 2000.

Equifax filed its answer on June 16, 2000, asserting a general denial and lack of diligence in service of process as an affirmative defense. The record again reflects no further activity until November 14, 2000, when Equifax filed its motion for traditional summary judgment on the grounds that limitations was not tolled until the date of service because Morris did not use due diligence in accomplishing service after filing suit. Equifax relied on Morris’s pleadings and certified copies of the service documents as summary judgment proof. In responding to Equifax’s motion, Morris disputed the standards Equifax maintained were controlling and argued that, (1) only extreme delay could justify imposing the limitations bar, (2) Equifax did not demonstrate extreme delay, and (3) Equifax should be required to demonstrate prejudice or harm before seeking dismissal on lack-of-diligence grounds. Morris offered no proof in opposition to Equifax’s motion.

*2 After the trial court rendered summary judgment in favor of Equifax, Morris filed a verified motion for new trial in which she claimed she and her counsel had demonstrated due diligence under the circumstances. The motion was supported by copies of correspondence directed to Morris from her counsel regarding her lawsuit, including payment of costs relating to the lawsuit. In opposing the motion for new trial, Equifax maintained Morris’s attempts to show due diligence served only to establish its absence.

Standard of Review

Well-settled principles govern our review of summary judgments rendered under rule 166a(c). See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). By basing its motion for summary judgment on the limitations bar, Equifax assumed the burden to establish that affirmative defense as a matter of law. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex.1990). When a defendant pleads limitations as an affirmative defense, and the defendant’s motion for summary judgment shows a lack of timely service, the burden shifts to the plaintiff to explain the delay. See Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex.1990). Equifax was entitled to summary judgment, therefore, if (1) it conclusively established all essential elements of its properly pleaded limitations bar, and (2) Morris did not defeat that showing by raising a fact issue concerning her diligence in accomplishing service. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex.1991); Gant, 786 S.W.2d 260; Taylor v.. Thompson, 4 S.W.3d 63, 65-66 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).

Lack of Due Diligence Established as a Matter of Law

All three of Morris’s issues challenge the due-diligence standard that controls this case. The parties agree that limitations expired on Morris’s claim for retaliatory discharge on December 10, 1999, and that Morris filed her original petition on that day. To sue timely, within limitations, however, Morris not only had to file suit within two years, but also had to exercise due diligence in serving Equifax with process. See Gant, 902 S.W.2d at 260; Taylor, 4 S.W.3d at 65. The duty of due diligence continued from December 10, 1999, when Morris filed suit, until May 24, 2000, when Equifax was actually served. See Taylor, 4 S.W.3d at 65.

Two factors determine diligence: (1) whether the plaintiff acted as would an ordinary prudent person under the same circumstances; and (2) whether the plaintiff acted diligently until the defendant was served. Id. Due diligence in accomplishing service is generally a question of fact, but can be determined as a matter of law when there is no valid excuse for not serving the defendant timely. Id. at 65. Unexplained delays in service negate diligence. See id. at 66 (four months between filing suit and service); Butler v. Ross, 836 S.W.2d 833, 835-36 (Tex.App.-Houston [1st Dist.] 1992, no writ) (five and one-half month period of inactivity).

*3 A plaintiff who offers summary judgment proof that creates a fact issue concerning diligence is thus entitled to show that the actual date of service relates back to the date of filing suit, which showing renders the original filing date timely. See Gant, 786 S .W.2d at 260; Hodge v. Smith, 856 S.W.2d 212, 215 (Tex.App.-Houston [1st Dist.] 1993, writ denied). If the plaintiff does not raise a fact issue concerning diligence, however, the date of filing does not prevent limitations from continuing to run. See Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex.1990); Taylor, 4 S.W.3d at 65.

Equifax contends Morris did not create a fact issue concerning her diligence in accomplishing service. We agree. Equifax established, by competent summary judgment proof, that Morris initially did not request issuance of citation, although she indicated the address for service in her pleadings. Equifax also established that Morris did nothing more on her case until May 10, 2000, exactly five months after the day she filed suit, when she requested that citation issue. Equifax also established it was not served until five and one-half months after Morris filed suit, on May 24, 2000.

Equifax’s motion conclusively established Equifax’s right to summary judgment on the grounds that Morris did not exercise due diligence in accomplishing service. See Murray, 800 S.W.2d at 830; Taylor, 4 S.W.3d at 65-66. Accordingly, the burden shifted to Morris to defeat summary judgment by creating a fact issue concerning her diligence. See Taylor, 4 S.W.3d at 65. Morris offered no proof at all, however, in opposing Equifax’s motion, and thus did not raise any evidence to explain her delay in accomplishing service. Having thus failed to create a fact issue concerning her diligence, Morris could not establish that the actual date of service, May 24, 2000, related back to the December 10, 1999 filing date to toll the limitations bar. See Gant, 786 S.W.2d at 260; Hodge, 856 S.W.2d at 215. Therefore, Morris did not defeat Equifax’s right to summary judgment and, because limitations thus continued to run after the December 10, 2000 filing date, the trial court properly rendered summary judgment in favor of Equifax.

In her first issue, Morris challenges the constitutionality of the due diligence standard under the Texas and federal constitutions .² But Morris did not raise this issue in opposing Equifax’s motion and, therefore, did not preserve error, if any. See Tex.R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal.”);  Tex.R.App. P. 33.1(a)(1)(A) (requiring that complaints on appeal be made to trial court by timely request, objection, or motion stating grounds for ruling sought); Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex.1993) (applying preservation-of-error requirement to constitutional challenge).

*4 We overrule Morris’s first issue.

In her second issue, Morris renews her trial-court challenge to the due-diligence standard by proposing that the equitable doctrine of lâches should control. Morris’s claims against Equifax are premised on legal rights created by statute, however, i.e., the prohibition against retaliatory discharge under section 451.001(1) of the Labor Code. Tex. Labor Code Ann. § 451.001(1). Lâches is an equitable doctrine that does not apply to suits premised on legal rights created by statute. See Callahan v. Giles, 155 S.W .2d 793, 796 (Tex.1941) (noting that lâches is “just as complete a bar to the assertion of an equitable right as the defense of limitation is a bar to the assertion of a legal right”).

We overrule Morris’s second issue.

In her third issue, Morris claims that calling Equifax into court after two years and five and a half months was reasonable³ and refers us to the lengthier limitations periods of several different states. Once again, Morris did not raise this issue in opposing Equifax’s motion and, therefore, did not preserve error, if any. See Tex.R. Civ. P. 166a(c); Tex.R.App. P. 33.1(a)(1)(A).

We overrule Morris’s third issue.

Conclusion

We affirm the judgment of the trial court.

	Footnotes
1		See Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a) (Vernon Supp.2001).
2		Morris refers to the rule as the “reasonable” diligence rule.
3		Morris describes the interim between her December 10, 1997 discharge from employment and service on Equifax as “two years and five months.” As addressed above, Morris did not accomplish service on Equifax until May 24, 2000. Thus, the interim is two years and five and one-half months.